EXHIBIT 2
ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made as of the 3rd day of October 2001, by and
between American West Trading Company, a Tennessee corporation ("Purchaser");
and Lucchese, Inc., a Delaware corporation ("Seller"). Purchaser and Seller are
referred to herein as the "Parties."
STATEMENT OF PURPOSE
Seller is engaged in the manufacture and sale of footwear, including
footwear manufactured and sold under the "Xxx Post" brand name (the "Xxx Post
Footwear Business"). Purchaser is willing to purchase the Xxx Post Footwear
Business and certain of the assets of such business from Seller, and Seller is
willing to sell such business and assets to Purchaser, on the terms and
conditions hereinafter set forth.
In consideration of the foregoing and the mutual promises made herein,
and to specify the terms and conditions under which the transactions
contemplated hereby will be consummated, the Parties do hereby agree as follows:
Agreement
1. DEFINITIONS. In addition to other terms defined herein, the
following terms, for all purposes of this Agreement, shall have the following
meanings:
"Affiliate" means a Person, directly or indirectly, under the control
of, controlled by or under common control with another Person.
"Assets" means the following assets of the Xxx Post Footwear Business:
(i) all of Seller's inventory and the In-Process
Inventory (as defined herein) described on SCHEDULE 1(A)(I) (the
"Inventory");
(ii) all machinery, lasts and dies described on SCHEDULE
1(A)(II) (the "Equipment");
(iii) all rights of Seller under the contracts and purchase
orders described on SCHEDULE 1(A)(III) (the "Contracts");
(iv) all (A) registered or unregistered trademarks,
service marks, trade dress, logos, designs, trade names, brand names
(including all of Seller's rights in the name "Xxx Post"), registration
or applications for registration thereof, of the Xxx Post Footwear
Business, as listed on SCHEDULE 1(A)(IV), (B) trade secrets or
confidential information, know-how, technical drawings, manufacturing
and product processes and techniques, research and development
information, copyrightable works, financial, marketing and business
data, pricing and cost information, business and marketing plans and
customer and supplier lists and information of the Xxx Post Footwear
Business, (C) the goodwill of the Xxx Post Footwear Business included
in connection with any of the foregoing, (D) other proprietary rights
relating to any of the foregoing (including remedies against
infringements thereof and rights of protection of interest therein
13
under the Laws of all jurisdictions) and (E) copies and tangible
embodiments thereof (the "Intellectual Property"); and
(v) all records, invoices and other documents and
information necessary to the ownership of the Assets and/or operation
of the Xxx Post Footwear Business other than the Retained Assets (the
"Books and Records").
"Assumed Liabilities" means all the liabilities and obligations of
Seller arising or to be performed after the Closing Date or existing as of the
Closing Date under the Contracts.
"Business Day" means any calendar day other than a Saturday, a Sunday
or a legal holiday in the State of North Carolina.
"Cash Payment" has the meaning set forth in Section 2(b)(1).
"Closing" means the consummation of the Transactions.
"Closing Date" means the date on which the Closing is to take place.
"Code" means the Internal Revenue Code of 1986, as amended, and rules
and regulations promulgated thereunder.
"Confidential Information" means any information concerning the Xxx
Post Footwear Business that is not already generally available to the public.
"Contracts" has the meaning set forth in the definition of "Assets."
"Default" means an event of default, as defined in any contract or
other agreement or instrument, or any event which, with the passage of time or
the giving of notice or both, would constitute an event of default or other
breach under such contract, agreement or instrument.
"Xxx Post Footwear Business" means the business of manufacturing and
selling Xxx Post footwear.
"Equipment" has the meaning set forth in the definition of "Assets".
"Encumbrances" means all claims, mortgages, pledges, liens,
encumbrances, security interests and adverse interests of every nature
whatsoever.
"Governmental Body" means any federal, state, municipal or other
governmental department, commission, board, bureau, authority, court, agency or
instrumentality, domestic or foreign.
"In-Process Inventory" means that certain inventory in the process of
being completed, which inventory is related to the Xxx Post Footwear Business
and is described on SCHEDULE 1(A)(I).
"Intellectual Property" has the meaning set forth in the definition of
"Assets".
"Knowledge" means actual knowledge or knowledge that could be expected
to be obtained after a reasonable investigation. "Knowing" shall have a
correlative meaning.
14
"Laws" means any federal, state, local or foreign laws (including
common law), ordinance, rule, regulation or Order, issued, promulgated or
approved by any Governmental Body.
"Liability" or "Liabilities" means any liability (whether known or
unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued,
liquidated or unliquidated, or due or to become due), including any indebtedness
and any liability for Taxes.
"Material Adverse Effect" means an adverse effect on the Xxx Post
Footwear Business or any customers, assets, operations, properties, prospects or
condition, financial or otherwise, of the Xxx Post Footwear Business, any of
which individually or in the aggregate creates a material adverse effect on the
Xxx Post Footwear Business as a whole.
"Note" has the meaning set forth in Section 2(b)(1).
"Order" means any order, writ, injunction, decree, judgment, award,
determination, direction, request for information or demand of a Governmental
Body.
"Person" means any natural person, corporation, limited liability
company, partnership, unincorporated association, firm, trust or other entity.
"Purchase Price" has the meaning set forth in Section 2(b).
"Retained Assets" means all assets of the Xxx Post Footwear Business
other than the Assets.
"Retained Liabilities and Obligations" means all obligations,
Liabilities, covenants, commitments and undertakings of Seller except for the
Assumed Liabilities.
"Suppliers" means the suppliers under the Contracts on SCHEDULE
1.1(A)(III).
"Taxes" means all taxes of any kind, including income, franchise, gross
receipt, transfer, value added, sales, use, wage and/or employment or
unemployment, excise, disability, real and personal property, capital or other
taxes, levies, imports, duties, license and registration fees, assessments, and
governmental charges of any nature whatsoever relating to or in lieu of any of
the foregoing, together with any interest, penalties or additions thereto,
whether disputed or not.
"Transactions" means the purchase and sale of the Assets pursuant to
the terms of this Agreement.
2. SALE OF THE ASSETS.
(a) Sale of Assets. The Closing will occur contemporaneously with
the execution of this Agreement. At the Closing, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, the Assets upon the
terms and subject to the conditions of this Agreement.
(b) Purchase Price. The "Purchase Price" for the Assets shall
equal the sum of (i) the Cash Payment and (ii) the amount of the Assumed
Liabilities. Purchaser shall pay to Seller the Purchase Price as follows:
15
(1) Purchaser shall wire transfer to an account
designated by Seller an amount equal to $2,574,841.26 (the "Cash
Payment") as follows: (A) $2,006,162.95 shall be wire transferred to
Seller at the Closing (the "First Cash Installment"); (B) $485,040.31
shall be wire transferred to Seller on December 28, 2001 (the "Second
Cash Installment") and (C) the amount payable pursuant to Section 6(h)
shall be paid as provided therein. Purchaser's obligation to make the
Second Cash Installment shall be evidenced by a note, a copy of which
is attached hereto as EXHIBIT 1 (the "Note").
(2) At the Closing Purchaser shall fully assume the
Assumed Liabilities by an instrument of assumption mutually
satisfactory to Purchaser and Seller.
(c) No Other Liabilities or Obligations Assumed by Purchaser.
Notwithstanding anything contained in this Agreement to the contrary, Purchaser
shall not assume or become liable for any Liabilities or obligations of Seller
other than the Assumed Liabilities, and Seller shall pay, satisfy and perform,
as and when due, all of such other Liabilities and obligations, regardless of
any disclosures made or exceptions noted with respect to the representations,
warranties, covenants and agreements of Seller contained in this Agreement or
any other document executed or delivered by Seller in connection with the
Transactions.
(d) Allocation of Purchase Price. The Parties agree that the
Purchase Price shall be allocated among the Assets in accordance with the
allocation set forth in SCHEDULE 2(D) hereto. The Parties agree that each will
report the federal, state and local income and other tax consequences of the
Transactions in a manner consistent with such allocation and that no Party will
take any position inconsistent with such allocation unless otherwise required by
applicable Law.
3. THE CLOSING.
(a) The Closing shall take place on the Closing Date at the
offices of Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P., Bank of America
Corporate Center, 000 X. Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxx Xxxxxxxx
00000-0000 on October __, 2001.
(b) At the Closing, Seller will:
(1) Deliver to Purchaser such assignments, bills of sale
and other instruments of transfer, on terms satisfactory to Purchaser,
as are necessary to fully and effectively convey to Purchaser the
Assets in accordance with the terms hereof;
(2) Deliver to Purchaser all authorizations, consents and
approvals of Governmental Bodies referred to in Section 4(b), if any;
(3) Deliver to Purchaser all of the third party consents
specified on Schedule 4(b), if any, on terms satisfactory to Purchaser;
(4) Execute and deliver to Purchaser the Shipping/Storage
Agreement between Purchaser and Seller in the form of EXHIBIT 2 hereto.
(c) At the Closing, Purchaser will:
(1) Pay to Seller the First Cash Installment as provided
in Section 2(b)(1);
16
(2) Execute and deliver to Seller the assumption
agreement referred to in Section 2(b)(2);
(3) Execute and deliver to Seller the Note;
(4) Execute and deliver to Purchaser the Shipping/Storage
Agreement between Purchaser and Seller in the form of EXHIBIT 2 hereto.
4. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby
represents and warrants that the statements contained in this Section 4 are
correct and complete.
(a) Organization and Authorization. Seller is a corporation duly
organized, validly existing and in good standing under the Laws of the State of
Delaware. Seller has all requisite power and authority to own the Assets and to
carry on the Xxx Post Footwear Business.
(b) Enforceable Obligation. Except as set forth on SCHEDULE 4(B),
the execution, delivery and performance of this Agreement and all agreements,
instruments and documents to be delivered by Seller hereunder, (i) are within
the power and authority of Seller, (ii) do not require the consent or approval
of, or filing, registration or qualification with, any Governmental Body or any
other Person, (iii) will not conflict with any terms, conditions or provisions
of the Certificate of Incorporation or Bylaws of Seller, (iv) will not violate
any Laws or Order, (v) will not conflict with, result in the breach of, give any
Person the right to exercise any remedy under or constitute a Default under any
indenture, mortgage, deed of trust, lease, agreement, contract, license or other
instrument to which Seller is a party or by which Seller or its property is
bound, (vi) will not cause Purchaser to become liable for the payment of any Tax
and (vii) will not result in the imposition of any Encumbrance upon any of the
Assets, other than any Encumbrance created by Purchaser. This Agreement has
been, and upon their execution and delivery the other agreements and other
instruments contemplated by this Agreement and to which Seller is a signatory
will have been, duly authorized, executed and delivered by Seller (as
applicable) and constitute or will constitute the legal, valid and binding
obligations of Seller, enforceable against them in accordance with their terms.
(c) Title to Assets; Condition.
(1) Seller has good, valid and marketable title to all of
the Assets, subject to no Encumbrances.
(2) The Equipment is fit and usable for the purpose for
which the Equipment is intended and, to the extent applicable, meets
all material standards, clearances, ratings and legal requirements
applicable thereto.
(3) As of the Closing, the Inventory (other than the
In-Process Inventory) will be marketable and merchantable, not slow
moving or obsolete, and free from defects and damages (patent and
latent). As of the Closing, such Inventory will have been stored, and
will have been maintained and handled, in a commercially reasonable
manner consistent with best industry practices, and will be fit for the
purpose for which it was procured. No Inventory has been consigned to
any Person. Seller has fully paid each third-party manufacturer for any
Inventory manufactured by such manufacturer.
17
(d) Litigation; Observance of Laws. Except as disclosed on
SCHEDULE 4(D), there is no litigation or any proceeding before any Governmental
Body or any arbitration pending, or, to the Knowledge of Seller, threatened,
involving the Xxx Post Footwear Business. No Order has been issued against or
binds Seller in respect of the Xxx Post Footwear Business. To the Knowledge of
Seller, no basis exists for the commencement of any such litigation, proceeding
or arbitration. Seller is not in violation of any Laws (including Environmental
Laws) in respect of the Xxx Post Footwear Business. Neither Seller, nor, to
Seller's Knowledge, any of Seller's officers, directors, employees or
representatives has made, directly or indirectly, with respect to the Xxx Post
Footwear Business, any illegal political contributions, payments not recorded or
falsely recorded in the books and records of the Xxx Post Footwear Business, or
payments to governmental officials in their individual capacities for the
purpose of affecting their action or the action of the Governmental Body they
represent (including "kickback" payments).
(e) [Intentionally Omitted]
(f) Conduct of the Xxx Post Footwear Business. From and after
March 31, 2001:
(1) Seller has operated the Xxx Post Footwear Business
generally in the usual and ordinary manner consistent with past
practices.
(2) Seller has used its reasonable best efforts to
maintain the goodwill associated with the Xxx Post Footwear Business,
and the existing business relationships with its agents, customers, key
employees, suppliers and other Persons having relations with it.
(3) There has not been any materially adverse change in
the business relationship of Seller with any supplier named in SCHEDULE
4(L) or any change in any material term (including credit terms) of the
supply agreements or related arrangements with any such supplier.
(4) To the Knowledge of Seller, there has not been any
other occurrence, event, incident, action, failure to act or
transaction affecting the Xxx Post Footwear Business which individually
or in the aggregate could reasonably be expected to have a Material
Adverse Effect.
(g) Liabilities. The Xxx Post Footwear Business has no material
Liabilities or obligations, other than Liabilities and obligations incurred by
Seller in the ordinary course of the Xxx Post Footwear Business consistent with
past practices and which do not and will not have a Material Adverse Effect.
(h) Contracts. True, correct and complete copies of all Contracts
have been delivered to Purchaser. Neither Seller nor, to Seller's Knowledge, the
other party to any Contract is in Default under such Contract.
(i) Products and Product Warranty. Each product manufactured,
marketed, sold, distributed or delivered by Seller in connection with the Xxx
Post Footwear Business at any time (the "Products") has been in conformity (or
such non-conformity has been subsequently cured) with all applicable contractual
commitments and all express and implied warranties made by Seller (the "Company
Warranties"). Seller has no Liability for any special, consequential or punitive
damages to any Person with respect to any Products.
18
(j) Product Liability. Seller has no Liability arising out of any
injury to individuals or property as a result of the ownership, possession or
use of any Product. Seller has not received any written notices, citations or
decisions by any Governmental Body that any Product is defective or fails to
meet any applicable standards promulgated by any such Governmental Body.
(k) Intellectual Property.
(1) Seller owns all of the Intellectual Property. Upon
the Closing each item of Intellectual Property will be owned by
Purchaser immediately following the Closing on identical terms and
conditions. No other Person has any rights to any of the Intellectual
Property and, to the Knowledge of Seller, no other Person is
infringing, violating or misappropriating any Intellectual Property.
(2) Seller has not, through the operation of the Xxx Post
Footwear Business, infringed or violated, or misappropriated, and does
not now infringe or violate, or misappropriate, any intellectual
property rights of any other Person. Seller has not received any
complaint, claim or notice alleging any such infringement, violation or
misappropriation.
(l) Suppliers. Except for the suppliers named in SCHEDULE 4(L),
Seller does not have any supplier from whom it purchased more than 5% of the
inventory for the Xxx Post Footwear Business which it purchased during its most
recent full fiscal year. SCHEDULE 4(L) sets forth the return policy of each such
supplier.
(m) Customers. Except for the customers named in SCHEDULE 4(M),
Seller does not have any customer to whom it made more than 5% of the sales of
the Xxx Post Footwear Business during its most recent full fiscal year. Except
as described in SCHEDULE 4(M), during the past two years, neither Seller nor, to
the Knowledge of Seller, any employee of Seller has received any material
customer complaints (except complaints in the ordinary course of the Xxx Post
Footwear Business) concerning Products and services of the Xxx Post Footwear
Business, nor has Seller had any material amount of its Products returned by a
purchaser thereof. To the Knowledge of Seller, the consummation of the
Transactions will not adversely affect the relationships established by Seller
with any of the customers listed on SCHEDULE 4(M).
(n) Certain Other Business Practices. Seller has not made any
payments or provided any benefits to any employees or agents (in their
capacities as such) of any customers, suppliers or others having business
relations with Seller which are intended or influence any action or business
decision by the customer, supplier or other Person they represent (including any
"kickback" payments). Except as disclosed in SCHEDULE 4(N), Seller has not paid
any promotional or other payments, or provided any other monetary benefits, to
its customers, suppliers or other Persons having a business relationship with
it, except for bona fide payments for goods and services received by Seller.
(o) Full Disclosure. Neither this Agreement, any financial
statement, Exhibit or Schedule or document required by this Agreement to be
prepared or furnished by or on behalf of Seller to Purchaser in connection with
this Agreement nor any agreement contemplated hereby or delivered pursuant
hereto, contained or contains any material misstatement of fact or omits to
state any material fact necessary to make the statements therein not misleading.
19
5. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser
represents, warrants and covenants to Seller as follows:
(a) Organization and Authorization. Purchaser is a corporation
duly organized and validly existing under the Laws of Tennessee and has all
requisite power and authority to enter into this Agreement and the agreements
contemplated hereunder and to consummate the Transactions.
(b) Litigation; Observance of Orders. There are no actions, suits
or proceedings, pending or threatened, nor to the Knowledge of Purchaser is
there any basis therefor against or affecting Purchaser before any Governmental
Body.
(c) Transactions are Legal and Authorized; Enforceable Obligation.
The execution, delivery and performance of this Agreement, the Note and the
agreements contemplated hereunder to be executed by Purchaser and the compliance
with all the provisions hereof and thereof (i) are within the power and
authority of Purchaser, (ii) do not require the consent or approval of, or
filing, registration or qualification with any Governmental Body or any other
Person, (iii) will not conflict with any of the terms, conditions or provisions
of the Certificate of Incorporation or bylaws of Purchaser, (iv) will not
violate any Laws or Orders, and (v) will not conflict with, result in the breach
of, or constitute a Default under any material indenture, mortgage, deed of
trust, lease, agreement, contract, license or other instrument to which
Purchaser is a party or by which any of its property is bound. This Agreement,
the Note and the other agreements contemplated hereunder to which Purchaser is a
party upon their delivery will have been duly executed by Purchaser and
constitute the legal, valid and binding obligations of Purchaser, enforceable
against Purchaser in accordance with their respective terms.
(d) Governmental Consents. No consent, approval or authorization
of, or filing, registration or qualification with, any Governmental Body on the
part of Purchaser is required in connection with the execution, delivery and
performance of this Agreement, the Note or any other agreement contemplated
hereunder to which it is a signatory.
6. COVENANTS.
(a) General. In case at any time after the Closing any further
action is necessary or desirable to carry out the purposes of this Agreement,
each of the Parties will take such further action (including the execution and
delivery of such further instruments and documents) as any other Party may
reasonably request, all at the sole cost and expense of the requesting Party
(unless the requesting Party is entitled to indemnification therefor under
Section 7). Seller agrees that after the Closing Purchaser will be entitled to
possession of all documents, books, records, agreements, and financial data of
any sort relating to the Xxx Post Footwear Business. Seller further agrees that
promptly after the Closing, it will work with Purchaser to provide a list of its
customer orders outstanding as of the Closing that relate to the Inventory.
(b) Transition. Seller will not take any action that is designed
or intended to have the effect of discouraging any lessor, licensor, customer,
supplier, or other business associate of the Xxx Post Footwear Business from
maintaining the same business relationships with Purchaser after the Closing as
it maintained with Seller in regard to the Xxx Post Footwear Business prior to
the Closing. Seller will refer all customer inquiries relating to the Xxx Post
Footwear Business to Purchaser or its designee from and after the Closing.
20
(c) Covenant Not to Compete, Etc.
(1) Acknowledgments. Seller hereby acknowledges the
benefits received by it in connection with the sale of all of the
Assets to Purchaser pursuant to this Agreement. Seller acknowledges
that Seller has special knowledge, expertise, contacts and other
information with respect to the Xxx Post Footwear Business, and that
Purchaser would not enter into this Agreement without obtaining the
agreement of Seller set forth in this Section 6(c), which and Seller
acknowledge and agree reflects reasonable restrictions necessary and
appropriate to protect the interest of the Xxx Post Footwear Business
and Purchaser and to ensure that Purchaser obtains all of the benefits
intended to be conveyed to Purchaser pursuant to this Agreement,
including the goodwill of the Xxx Post Footwear Business.
(2) Definitions.
"Territory" means (i) the United States of America;
(ii) each state or province in which any customer of the Xxx
Post Footwear Business is located as of the date hereof; and
(iii) if so required in order to make the covenants in this
Agreement enforceable, any geographic location within any
state in which the Xxx Post Footwear Business does business as
of the date hereof.
"Competing Business" means any business which
manufactures, sells or distributes any footwear of a style,
quality and price substantially similar and in direct
competition with the Xxx Post footwear as of the Closing Date.
Notwithstanding the foregoing, nothing in this Section 6(c)
shall be construed as preventing Arena Brands, Inc. and Seller
from continuing Seller's existing Acme and Lucchese brands of
footwear, whether at current or lower prices.
(3) Non-Competition. Seller hereby agrees that for two
years after the Closing Date, neither Seller, Arena Brands, Inc. nor
any direct or indirect subsidiary of Arena Brands, Inc. will directly
or indirectly, (1) have any ownership interest (whether as proprietor,
partner, stockholder or otherwise) in, (2) be an officer, director or
general or managing partner of, or hold a similar position in, (3) act
as agent, broker or distributor for, or adviser or consultant to, (4)
be employed in, (5) lend money to, or guarantee the loan by another
Person to, or (6) otherwise engage in, any business or business
activities (without regard to the form in which conducted) which is
engaged, or which Seller reasonably knows is undertaking to become
engaged, in a Competing Business within the Territory. However, the
disposition by Seller of the Xxx Post inventory retained by Seller, or
transferred to Seller under Section 7(d), shall not be deemed a
violation of the foregoing.
(4) Trade Secrets; Confidential Information. Seller
recognizes and acknowledges that it has had access to certain highly
sensitive, special or unique Information, and agrees that it shall not
at any time after the date hereof, use or divulge, furnish or make
accessible to anyone any Confidential Information, except as may
otherwise be required by Law or may otherwise become public knowledge
from a source, other than Seller, who is entitled to disclose such
information. Purchaser recognizes and acknowledges that it has had
access to certain non-public information relating to Arena Brands, Inc.
or Seller in connection with its evaluation of the Transactions and
agrees that it shall not at any time after the date hereof, use or
divulge, furnish or make accessible
21
to anyone any such information (other than information that Purchaser
acquires as part of the Xxx Post Footwear Business), except as may
otherwise be required by Law or may otherwise become public knowledge
from a source, other than Purchaser, who is entitled to disclose such
information.
(5) Miscellaneous. If the final judgment of a court of
competent jurisdiction declares that any term or provision of this
Section 6(c) is invalid or unenforceable, the Parties agree that the
court making the determination of invalidity or unenforceability shall
have the power to reduce the scope, duration, or area of the term or
provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the
intention of the invalid or unenforceable term or provision, and this
Agreement shall be enforceable as so modified after the expiration of
the time within which the judgment may be appealed.
(d) Tax Cooperation. After Closing, the Parties shall cooperate
and exchange information relating to the Business as is necessary in (i) filing
any Tax returns, (ii) determining any Tax liability or a right to refund of
Taxes, (iii) conducting or defending any audit or other proceeding in respect of
Taxes or (iv) effectuating the terms of this Agreement. Purchaser shall retain
and upon request shall make available all Tax returns, work papers and all
material records (including accounting records) and other documents relating
thereto, until the later of the expiration of the statute of limitations (and
any extension thereof) of the periods to which such Tax returns and other
documents relate or the final determination of any Tax in respect of such
period. Any information obtained shall be kept confidential except as may be
otherwise necessary in connection with filing any Tax return, determining any
Tax liability or right to the refund of any Taxes, or in conducting or defending
any audit or other proceeding in respect of Taxes.
(e) Employees. Purchaser may, in its sole discretion (and without
any obligation), offer employment to any person who is employed by the Xxx Post
Footwear Business. Purchaser shall have no obligations or liabilities to any of
Seller's employees, whether arising out of the termination by Seller of the
employment of any such employees as a result of the Transactions or otherwise,
all of which obligations and liabilities, if any, shall be the sole
responsibility of Seller. Without limited the generality of the foregoing,
Seller shall indemnify and save harmless Purchaser from and against any and all
liabilities and obligations to Seller's employees, whether arising prior to or
as a result of the sale of the Assets hereunder or otherwise, including any and
all liabilities and obligations for severance pay, accrued vacation pay, or
other employee benefits, and any and all liabilities and obligations arising out
of the Worker Adjustment and Retraining Notification Act and any other Laws.
(f) Agents and Sales Representatives. Purchaser may, in its sole
discretion (and without any obligation), engage the services of any agent or
sales representative who provides services to the Xxx Post Footwear Business.
(g) Bulk Transfer Compliance. Inasmuch as Purchaser is to assume
the Assumed Liabilities and Seller has agreed to duly pay, perform and discharge
the Retained Liabilities and Obligations, the Parties hereby mutually agree to
waive compliance with the provisions of Article 6 of the Uniform Commercial
Code, of any applicable jurisdiction, to the extent applicable to the
Transactions. Seller covenants and agrees to indemnify and save harmless
Purchaser from and against any and all loss, liability, cost and expense
(including reasonable attorneys' fees) arising out of noncompliance with said
22
Bulk Transfers laws except to the extent arising out of Purchaser's failure to
pay, perform and discharge the Assumed Liabilities as and when due.
(h) In-Process Inventory. Seller agrees to fully complete, or have
fully completed, the manufacture of the In-Process Inventory. Upon such
completion, Seller agrees to sell to Purchaser and Purchaser agrees to buy from
Seller, through the issuance of a purchase order from Purchaser and at the price
indicated on SCHEDULE 6(H), the In-Process Inventory, provided that such
In-Process Inventory shall be delivered to Purchaser in good condition and that
(i) the title to the In-Process Inventory shall be transferred to Purchaser,
subject to no Encumbrances, (ii) the In-Process Inventory shall be marketable
and merchantable, not slow moving or obsolete, and free from defects and damages
(patent and latent), (iii) none of the In-Process Inventory shall have been
consigned to any Person and (iv) Seller shall have fully paid any third party
manufacturer for any In-Process Inventory manufactured by such manufacturer.
(i) Cooperation. Inasmuch as Purchaser will, after the Closing,
transition the Assets into its operations and its information systems, which
transition will require time, Purchaser will require certain cooperation from
Seller in such transition. Accordingly, Purchaser shall be entitled, for a
period not to exceed 90 days from the Closing, the cooperation of the Seller in
allowing Purchaser access to employees of Seller with respect to patterns,
computer fancy stitch patterns and purchasing as related to the Assets, provided
that such access shall occur during Seller's regular business hours and not
materially interfere with Seller's business operations. Purchaser shall not be
charged any fee for such access.
7. INDEMNIFICATION.
(a) Indemnification by Seller. Seller shall indemnify, defend and
hold harmless Purchaser from and against any and all costs, fees, Liabilities,
Taxes, charges, claims, expenses and damages, including reasonable legal fees
and expenses (both those incurred in connection with the defense or prosecution
of the indemnifiable claim and those incurred in connection with the enforcement
of this provision) and costs of investigation, as incurred or paid (whether or
not involving a third party claim) by Purchaser or any of its respective
officers, directors or employees (collectively "Purchaser Losses") as a result
of:
(1) The falsity or incorrectness of any representation or
warranty made by Seller in this Agreement or in any instrument or
document delivered by Seller to Purchaser pursuant to this Agreement;
(2) Seller's failure to duly perform any covenant or
agreement to be performed by it under this Agreement or under any
instrument or document delivered by Seller to Purchaser pursuant to
this Agreement, including Seller's failure to pay or perform as and
when due any of the Retained Liabilities and Obligations and any other
liability or obligation, or alleged liability or obligation, of Seller
other than the Assumed Liabilities; or
(3) Any levy or other claim by any third party against or
with respect to the Assets, or any other claim by any third party
against Purchaser, arising out of any act or omission of Seller prior
to the Closing, except to the extent such claim or levy is with respect
to Assumed Liabilities; or
(4) The amount of any refund or credit given by Purchaser
after the Closing in respect of any Xxx Post footwear of the style
included in
23
the Inventory shipped by Seller or Purchaser but returned under normal
return policy of the Xxx Post Footwear Business to Purchaser within 90
days after the Closing.
(5) The amount of any loss or liability incurred by
Purchaser after the Closing in respect of any Xxx Post footwear of a
style not included in the Inventory.
(b) Indemnification by Purchaser. Purchaser agrees to indemnify,
defend and hold harmless Seller from and against any and all costs, fees,
Liabilities, Taxes, charges, claims, expenses and damages, including reasonable
legal fees and expenses (both those incurred in connection with the defense or
prosecution of the indemnifiable claim and those incurred in connection with the
enforcement of this provision) and costs of investigation, as incurred or paid
(whether or not involving a third party claim) by Seller (collectively "Seller
Losses") as a result of:
(1) The falsity or incorrectness of any representation or
warranty made by Purchaser in this Agreement or in any instrument or
document delivered by Purchaser to Seller pursuant to this Agreement;
or
(2) Purchaser's failure to duly perform any covenant or
agreement to be performed by it under this Agreement or under any
instrument or document delivered by Purchaser to Seller pursuant to
this Agreement, including Purchaser's failure to pay or perform as and
when due any of the Assumed Liabilities.
(c) Indemnity Procedure.
(1) Upon receipt by the Party claiming indemnification
hereunder (the "Claimant") of information relating to the existence of
facts or circumstances which could result in the incurrence of a loss,
the Claimant shall promptly give notice thereof to the Party from whom
indemnification is claimed (the "Indemnifying Party") (the "Indemnity
Claim"), provided that failure to give timely notice shall not release
the Indemnifying Party of its obligations hereunder except to the
extent the Indemnifying Party suffers actual prejudice as a direct
result of such failure. For up to 20 days after the Claimant submits an
Indemnity Claim to the Indemnifying Party, the Indemnifying Party shall
have the opportunity to make such investigation of the Indemnity Claim
as the Indemnifying Party deems necessary or desirable. For purposes of
such investigation, the Claimant agrees to make available to the
Indemnifying Party or its authorized representative(s) the information
relied upon by the Claimant to substantiate the Indemnity Claim. If the
Claimant and the Indemnifying Party agree, at or prior to the
expiration of such 20-day period (or any mutually agreed upon extension
thereof), to the validity and amount of such Indemnity Claim, the
Indemnifying Party shall immediately pay to the Claimant the full
amount of the Indemnity Claim. If the Indemnifying Party and the
Claimant cannot agree on either the validity or the amount of such
Indemnity Claim, the Claimant may seek appropriate legal remedy.
(2) The Indemnifying Party shall have the right to assume
the defense of any Indemnity Claim that involves a claim by a third
party (a "Third Party Claim") by giving written notice (the "Assumption
Notice") to the Claimant within 20 calendar days after notice given
pursuant to Section 7(c)(1), which Assumption Notice shall state that
(A) it agrees that the Claimant is entitled to indemnification
hereunder for the Third Party Claim and that the Indemnifying Party is
liable for any resulting loss; and (B) it agrees to assume the defense
of the Third Party Claim
24
in the name and on behalf of the Claimant with counsel reasonably
satisfactory to the Claimant, at the sole cost and expense of the
Indemnifying Party; provided, that (x) all such costs and expenses of
the foregoing counsel, if not paid by the Indemnifying Party and
instead paid by the Claimant shall be losses indemnifiable by the
Indemnifying Party under Section 7(a) or 7(b) (as applicable), (y) the
Claimant, notwithstanding the timely delivery of an Assumption Notice,
may participate in the Third Party Claim through counsel separately
selected and paid for by the Claimant, and (z) if no Assumption Notice
is timely given, or despite the giving of the Assumption Notice the
defendants in any action include the Claimant and the Indemnifying
Party, and the Claimant shall have reasonably concluded that there may
be legal defenses available to it which are different from or
additional to those available to the Indemnifying Party, or if there is
a conflict of interests which would prevent counsel for the
Indemnifying Party from also representing the Claimant, the Claimant
shall have the right to select separate counsel to conduct the defense
of the Third Party Claim on its behalf, and all such costs and expenses
shall be paid by the Indemnifying Party and, if paid by the Claimant,
shall be losses indemnifiable by the Indemnifying Party under Section
7(a) or 7(b) (as applicable). The Claimant may take such action with
respect to a Third Party Claim as it may deem appropriate to protect
against further damage or default, including obtaining an extension of
time to answer the complaint or other pleading or filing an answer
thereto.
(d) Return of Certain Footwear. In the event that Seller
reimburses Purchaser pursuant to Section 7(a)(4) or Section 7(a)(5) for any Xxx
Post footwear returned to Purchaser, then Purchaser shall promptly, but in any
event within 10 Business Days after receipt of such reimbursement, transfer such
footwear to Seller.
8. PUBLIC ANNOUNCEMENTS. No Party shall issue any press release
or announcement, or make any reference to the Closing or to the Transactions to
any third Person without the prior written consent of the other Parties. All
Parties shall coordinate the announcement of the Closing, as to both the manner
and content thereof.
9. OTHER REMEDIES FOR BREACH OF THIS AGREEMENT. In the event of a
breach of any representation, warranty, covenant or agreement of this Agreement
by any Party, the Party not in breach (the "Non-Defaulting Party") shall, in
addition to indemnification pursuant to Section 7, be entitled to seek and
obtain, any remedy otherwise available to it at Law or in equity. All remedies
may be pursued cumulatively, simultaneously and/or in the alternative and any
Party may apply to a court of competent jurisdiction for temporary, preliminary
or permanent injunctive relief, or any other provisional remedy available.
10. BROKERS. Each of the Parties represents and warrants to the
other that it has not employed or dealt with any broker in connection with any
transactions contemplated by this Agreement, and shall save the other harmless
from any and all other claims at any time hereafter made for brokers' or
finders' fees or commissions, which claim or claims arise out of any agreement
alleged to have been made or action taken by the other, concerning or relating
to the subject matter of this Agreement.
11. NOTICES.
(a) All notices and other communications hereunder will be in
writing and will be given by delivery in person, facsimile or other standard
form of telecommunications, by overnight courier, or by registered or certified
mail,
25
return receipt requested, to the Parties at their respective addresses set forth
below, with copies as follows:
If to Purchaser: American West Trading Company
c/x XxXxx Industries, Inc.
000 X. Xxxx Xxxxxx
Xx. Xxxxxx, XX 00000
Fax: 910/000-0000
Attention: D. Xxxx XxXxx
President & CEO
With copy to: Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center, Suite 4200
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Fax: 704/000-0000
Attention: Xxxxxx X. Xxxxxxx, Esq.
If to Seller: Lucchese, Inc.
000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Fax: 972/000-0000
Attention: Xxxx Xxxxxxxx
With copy to: Weil, Gotshal & Xxxxxx, LLP
000 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxx Xxxxx 00000
Fax: 214/000-0000
Attention: Xxxxx X. Xxxx, Esq.
Notice given by mail shall be deemed given three Business Days after
deposit with the United States Postal Service; notice given by overnight courier
shall be deemed given one Business Day after delivery into the custody and
control of such overnight courier service for next day delivery; notice
delivered by facsimile shall be deemed given one Business Day after such
delivery and receipt by sender of telecopier confirmation thereof; and notice
delivered in person shall be deemed given upon receipt.
(b) Any Party may change the address to which any notice or other
communication shall be given by a notice to such effect complying with Section
11(a).
12. MISCELLANEOUS.
(a) Rights Confined to Parties. Nothing expressed or implied
herein is intended or shall be construed to confer upon or give to any Person,
other than the Parties, and their respective successors and assigns as permitted
hereunder, any right, remedy, or claim under or by reason of this Agreement or
of any term, covenant, or condition hereto, and all the terms, covenants,
conditions, promises, and agreements contained herein shall be for the sole and
exclusive benefit of the Parties and their successors and assigns as permitted
hereunder.
(b) Survival. The representations, warranties, covenants and
agreements of each Party shall survive the Closing and shall remain operative
and in full force and effect as follows: (i) all covenants and agreements
26
shall remain in full force and effect until the expiration of the applicable
statute of limitations, except for the provisions of Section 6(c)(3), which
shall remain in effect for a period of two years after the Closing date, (ii)
the representations and warranties set forth in Sections 4(a), 4(b) and 4(c) and
Sections 5(a) and 5(c) shall remain in effect without any time limit and (iii)
the representations and warranties not described in clause (ii) shall remain in
full force and effect for a period of four years after the Closing Date. The
right to indemnification, payment of damages or other remedy based on any such
representations, warranties, covenants and agreements will not be affected by
any investigation conducted with respect to, or any knowledge acquired (or
capable of being acquired) at any time, whether before or after the execution
and delivery of this Agreement or the Closing Date, with respect to the accuracy
or inaccuracy of or compliance with, any such representations, warranties,
covenants or agreements. The waiver of any condition based on the accuracy of
any representation or warranty, or on the performance of or compliance with any
covenant or agreement, will not affect the right to indemnification, payment of
damages, or other remedy based on any such representations, warranties,
covenants and agreements.
(c) Entire Agreement. This Agreement, together with the Exhibits
and Schedules hereto, and the agreements entered into in accordance with the
terms hereof and contemplated hereby, constitute the entire understanding among
the Parties hereto with respect to the subject matter hereof and thereof and
supersede any and all prior agreements between the Parties with respect to the
subject matter hereof and thereof.
(d) Assignment. This Agreement is not assignable by any Party and
any purported assignment shall be null and void and of no effect.
(e) Construction. The captions in this Agreement are for
convenience or reference only and in no way define, limit or describe the scope
of intent of any provisions or sections of this Agreement. All references in
this Agreement to Sections are references to the Sections in this Agreement,
unless some other reference is clearly indicated. In this Agreement, unless the
context otherwise required, (1) words describing the singular number shall
include the plural and vice versa, (2) words denoting any gender shall include
all genders, (3) references to "including" shall mean "including without
limitation" and (4) "or" is not exclusive.
(f) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall not affect the validity or
enforceability of any other provision in such jurisdiction or the validity or
enforceability of such provision in any other jurisdiction.
(g) Effect of Headings. The Section and subsection headings
contained herein or therein are for convenience only and shall not affect the
construction hereof.
(h) Governing Law. The provisions of this Agreement, and all the
rights and obligations of the Parties hereunder, shall be governed by and
construed in accordance with the Laws of the State of North Carolina applicable
to agreements made and to be performed wholly within such State, without giving
effect to any choice or conflict of law provision that would cause the
application of the Laws of any jurisdiction other than the State of North
Carolina.
(i) Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
* * * * *
[SIGNATURE PAGE FOLLOWS]
27
IN WITNESS WHEREOF, the Parties have executed this Agreement or caused
same to be executed by their respective officers or other representatives
thereunto duly authorized, as of the date first above written.
AMERICAN WEST TRADING COMPANY
By: /s/D. Xxxx XxXxx
--------------------------------------
Name: D. Xxxx XxXxx
-----------------------------------
Title: CEO
------------------------------------
LUCCHESE, INC.
By: /s/Xxxx X. Xxxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxxx
------------------------------------
Title: President & CEO
-----------------------------------
28
LIST OF SCHEDULES AND EXHIBITS:
Schedule 1(a)(i) Inventory
Schedule 1(a)(ii) Equipment
Schedule 1(a)(iii) Contracts
Schedule 1(a)(iv) Trademarks
Schedule 2(d) Purchase Price Allocation
Schedule 4(b) Enforceability Exceptions
Schedule 4(d) Litigation
Schedule 4(l) Suppliers
Schedule 4(m) Customers
Schedule 4(n) Promotional Payments
Schedule 6(h) Inventory Prices
Exhibit 1 Promissory Note
Exhibit 2 Shipping/Storage Agreement
Copies of these Schedules and Exhibits will be provided to the Commission upon
request.
29
